Boston, C. & M. R. R. v. Boston & L. R. R.

• Citation: 23 A. 529,65 N.H. 393
• Parties: BOSTON, C. & M. R. R. v. BOSTON & L. R. R. SAME v. BOSTON & M. R. R. et al., (two cases.)
• Decision Date: 31 December 1888
• Court: Supreme Court of New Hampshire

23 A. 529

65 N.H. 393

BOSTON, C. & M. R. R.

v. BOSTON & L. R. R.

SAME

v. BOSTON & M. R. R. et al., (two cases.)

Supreme Court of New Hampshire. Merrimack.

Dec. Term, 1888.

Three suits by the Boston, Concord & Montreal Railroad against the Boston & Lowell Railroad and against the Boston & Lowell and the Boston & Maine Railroads. The first was an equity suit, in which plaintiff sought to hare set aside, as invalid, a lease made by it to the Boston & Lowell. The hill in this case was dismissed. The second was a bill in equity against the Boston & Lowell and the Boston & Maine to enforce a forfeiture of the lease on the ground that the Boston & Lowell had sublet to the Boston & Maine contrary to a covenant in the lease. This bill was also dismissed. The third was a real action against the Boston & Lowell and the Boston & Maine to recover possession of the line leased by plaintiff to the Boston & Lowell on the ground that the estate leased was forfeited by a sublease contrary to the covenants of the lease. In this case, plaintiff recovered.

H. Bingham, Chase & Streeter, and Jeremiah Smith, for plaintiffs.

A. A. Strout, J. H. Benton, Jr., R. Olney, and C. H. Burns, for defendants.

DOE, C. J. The first or the three suits is a bill in equity, in which the plaintiffs ask a decree against the validity of the contract by which they undertook to lease their road to the Lowell in 1884. In 1883 the legislature had given all the authority they could give for leasing the road upon certain conditions. "Any railroad corporation may lease its road * * * to any other railroad corporation upon such terms and for such time as may be * * ?agreed to by the directors, and as may be * * * approved by two-thirds of all the votes cast on that subject by the stockholders.* * *No competing railroads now prohibited by law from leasing or uniting shall have a right, under the provisions of this act, to * * * lease each other, unless said roads, or one of them, has heretofore leased or united with some other road or roads, for the purpose of forming a continuous line, or shall hereafter, or at the time of such lease, * * * unite with or lease some other road for such purpose. * * * Railroad corporations created by the laws of other states, operating roads within this state, shall have the same rights for the purposes of * * * leasing * * * other roads as if created by the laws of this state." Laws 1883, c. 100, §§ 17, 18. The first question is whether the lease of the Montreal road to the Lowell Company complied with all the terms prescribed by law as conditions of the state's assent.

The lessees are a Massachusetts corporation. Were they "operating" a railroad in this state, within the meaning of section 18? In the literal and ordinary sense of the word, they were operating the Manchester & Keene road. They and the Concord Company had bought it. Each of the corporate purchasers had a deed of an undivided half. In a practical and equitable sense, they were joint proprietors of the road. The Lowell were operating it for themselves and the Concord. For many of the purposes of responsibility, the Lowell were proprietors, (State v. Railroad, 58 N. H. 410;) and if they were operating it legally, under a good title or valid contract, with the consent of the state and of all parties in interest, it is not material who had the profit and loss. The Manchester & Keene Company had mortgaged their road under authority given by chapter 142, Laws 1873. In 1881 an act (chapter 232) had been passed, entitled "An act in relation to the foreclosure of the Manchester & Keene Railroad." The legal meaning of parts of this act is materially affected by the peculiar circumstances of disaster and danger for which the act shows the legislature intended to provide. The contemplated foreclosure indicated the bankruptcy of the Manchester & Keene Company, and their inability to perform their public duty of transportation in the district their road was designed to accommodate. The third section of the act recognizes the need of powers of sale and purchase specially adapted to secure the completion and effective operation of the road The legislature evidently understood there was reason to fear that, whatever might be the prospect or a sale of some part or parts of the road, there would be difficulty in finding a purchaser willing to pay all the debts, and take the road with an obligation to complete, maintain, and operate the whole of it. The stipulation that "nothing in this act contained shall be construed to authorize the discontinuance of any portion of said road" reveals an apprehension that the authority given the trustees to sell it "as a whole or in suitable parts," and the authority given the purchasers to sell "the whole or any part thereof at private sale, if they think such sale best calculated to secure the effective operation of the whole road," might be construed as an assent to a discontinuance of some part that would not pay the expense of operation. While the bankruptcy of the corporation and the losses of the stockholders might be irretrievable, a sale under a prohibition of discontinuance might save something for the creditors without subjecting the public to the loss of any part of the road.

The act discloses no purpose to withhold from non-residents the privilege of bringing their money into this jurisdiction, and devoting it to public use in this unpromising enterprise. It contains no allusion to the subject of their laboring under a peculiar disability, and suggests no reason for shutting them out of this branch of the public service. It does not require the purchase to be made by a corporation, or by more than one person. Neither in express terms nor by fair implication does it require the purchaser to be a citizen of New Hampshire or of the United States. In the attempt to rescue the highway from extinction, it is not to be assumed that the legislature must have meant to deprive the public of the pecuniary aid and personal services that might be offered by strangers and foreigners. For all necessary and proper purposes, the road and its purchasers and operators would be subject to New Hampshire law, and to the verdicts of New Hampshire juries, in all courts,—state and federal. There is in the act no intimation of a preference for the opinions of this court on questions of local law, or an intention to adopt an inability to remove a case to the federal court as a test of the right to be a purchaser. Express consent is given to a purchase by "any railroad company." Taken without qualification, this clause includes foreign as well as domestic railroad corporations. The words "any railroad company" might be used in a connection and for a purpose that would show a restricted sense, not including foreign companies. Here is no evidence of a purpose to exclude them; and the general scope of the act, and the impending danger for which it attempted to provide the best available remedy, furnish abundant reason to believe the rejection of foreign aid was not intended. So much of the road "as may be purchased by any railroad connecting therewith, either directly or through lines which it leases or operates, may thereupon be made a part of the railroad purchasing the same, as aforesaid, the same as if it had been originally incorporated as a part of its railroad; and said railroad shall have all the rights, powers, and privileges necessary to carry this act into effect." How many connecting railroads are within this clause we need not inquire. It describes the Lowell as a company authorized to be a purchaser, so far as authority can be given by New Hampshire law. And without this clause, considering to what extent the Manchester & Keene road must have been designed to be a means of communication between southern New Hampshire and Boston, and to what extent economy and public convenience would be consulted by its being run as a part of the Lowell, a legislative intent to exclude the Lowell and every other foreign company from the right of purchase could not be found without clear evidence of a discrimination so manifestly calculated to defeat the object of the act.

Words literally importing the singular number may extend to several persons or things, when such is their apparent meaning. By this rule of construction the act authorizes several railroad companies to be joint purchasers of the whole or any part of the road. And this meaning is in the provision of section 4, (amended by chapter 246, Laws 1883,) giving a certain authority to "the railroad or railroads purchasing the said Manchester & Keene Railroad, or any part thereof." "The railroad or railroads" making such purchase "are authorized to issue bonds, secured by mortgage on their own road, * * * or on the property purchased, or on both jointly." The legislature were content with giving all the needed authority they could give to invite bids from citizens and aliens, residents and non-residents, incorporated rail way companies and unincorporated persons, and to induce them to save this road for public use, without undertaking to exclude any for want of foreign corporate power. The consent of another state was not made a condition of the consent of this state. The authority to make a mortgage and increase capital stock, which was given to those purchasers to whom New Hampshire could give it, included the assent of this state to a joint mortgage of this read and a foreign road of the purchasers. The Lowell Company operated this road, with the consent of the state, under the act of 1881. If any stockholders of the Lowell were ever entitled to an injunction in this state, they apparently waived it by laches. The burden of proof has not been shifted from the plaintiffs to the defendants; and it does not appear that at the date of the Montreal lease the Lowell Company could have been expelled by legal process from the Manchester & Keene road. For all the purposes of this case, they were...